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Chief Justice Marshall 



CONSTITUTIONAL LAW OF HIS TIME 



AN ADDRESS 



BEFORE THE 



AMERICAN BAR ASSOCIATION 



SARATOGA, AUGUST 21, 1879, 



Efj. PHELPS. 



Reported by J. H. Mimms, Stenographer. 



PHILADELPHIA: 

E. C. MARKLEY & SON, No. 422 LIBRARY STREET. 

1879. 



yk"pM^ 



Note.— This address was published by the Association, in their Annua) 
Proceedings. The separate copies are from the same imprint. 



BY 

E. J. PHELPS. 



Me. President and Gentlemen of the dissociation : — I 
had hoped to have offered you, this morning, what you may 
perhaps regard as due to the occasion, a written address. 
Circumstances not foreseen when I accepted the invitation of 
your committee, have placed that preparation out of my power, 
and have reduced me to the necessity either of appearing before 
you without it, or not appearing at aU. I should have accepted 
the latter alternative, if I had felt myself quite at liberty to 
disregard such an engagement ; and if I had not felt so much 
solicitude for the success of this our first annual meeting, that 
I was reluctant to have any of its announcements fail. It seems 
to me that if these meetings are to succeed, we should i^egard 
such invitations somewhat as politicians profess to regard nomi- 
nations for the Presidency : not supposed to be sought, but not 
under any circumstances whatever to be declined. 

Allow me one word further on this subject. While we shall 
always listen, I am sure, with greater pleasure and advantage, 
to the elaborate preparation that produces such admirable 
papers as we heard yesterday, in the address and the essays 
that were read to us, I hope that the precedent will not 
be established among us, that such preparation is indispen- 
sable. We all know how difScalt in our busy lives it is, at all 
times to command it. I trust therefore, we shall always feel 
at liberty, when we are fortunate enough to have anything to 
say, and to be asked to say it, to address each other in the 
simple unpremeditated style that prevails in courts of justice. 
In other words, if gentlemen cannot always redeem their obli- 
C3) 



4 AMERICAN ^AR ASSOCIATION. 

gations in gold, let us have the silver, even at ninety-two cents 
on the dollar ; it is much better than total repudiation, 

I shall ask your attention to some observations, more desultory 
than I hoped to make them, on the subject of Chief Justice 
Marshall, and the constitutional law of his time. 

If Marshall had been only what I suppose all the world ad- 
mits he was, a great lawyer and a very great judge, his life, 
after all, mia;ht have had no greater historical sisfnificance, in 
the strict sense of the term, than tlie lives of many other illus- 
trious Americans, who in their day and generation have served 
and adorned their country. 

A soldier of the revolution — the companion and friend of 
Washington, as afterwards his complete and elegant biogra- 
pher — greatly distinguished at the bar and in the public ser- 
vice before he became Chief Justice — and then presiding in that 
capacity for so long a time, with such extraordinary ability, 
with such unprecedented success — if the field of his labors had 
been only the ordinary field of elevated judicial duty, his life 
would still have been, in my judgment, one of the most cher- 
ished memories of our profession, and best worthy to be had in 
perpetual remembrance. Pinckney summed up his whole char- 
acter when he declared that Marshall was born to be the Chief 
Justice of whatever country his lot might happen to be cast in. 
He stood pre-eminent and unrivalled, as well upon the unani- 
mous testimony of his great contemporaries, as by the whole 
subsequent judgment of his countrymen. The best judicial 
fruit our profession has produced. 

Another interest, less important, but perhaps to the lawyer 
who dwells upon the history of his profession more fascinating, 
attaches to the life of Marshall. He was the central figure — 
the cynosure — in what may well be called the Augustan age of 
the American bar ; golden in its jurisprudence, golden in those 
charged with its service, and sharing in its administration. We 
cannot expect, since change is the law of systems as well as of in- 
dividuxals, and of all human affairs, we can never expect to see 



ADDRESS OF E. J. PHELPS. 5 

hereafter, a jurisprudence so simple, so salutary, so elevated, so 
beneficent, as the jurisprudence of those days. Perplexed as the 
law has become with infinite legislation, confused and distracted 
with a multitude of incongruous and inconsistent precedents 
that no man can number, it is a different system now, although 
still the same in name, from that which Marshall dealt with. 
And it is no disparagement to the bar of our day — and no man 
esteems its ability and character higher than I do — to say that 
we can hardly liope to behold again such a circle of advocates, 
displayed upon a stage at once distinctive and conspicuous, as 
gathered round the tribunal over which the great Chief Justice 
presided. The Livingstons, Emmet, Oakley, Dexter, Webster, 
Pinkney, Wirt, Sergeant, Binney, Hopkinson, Dallas — no need to 
name them all; their names are household words among lawyers. 
Well may it be said of them, " the dew of their birth was of the 
womb of the morning;" the morning of this country; the 
morning of Republican government; the morning of American 
law, of American prosperity, of American peace. It is sad to 
remember, what we all have to remember, how largely the fame 
of such men rests in tradition ; how much of it is in pais, and 
how little on the record. It is the fate of the advocate. How- 
ever important his labors, or brilliant his talents, they are ex- 
pended for the most part upon transitory aff'airs — the concerns 
that perish — the controversies that pass away. Like the actor, 
he has his brief and busy hour upon the stage, but his audience 
is of the hour, his applause of the moment. When the curtain 
falls, and he is with us no longer, very little remains of all his 
exertions. Even the memory of them perishes, when the wit- 
nesses are gone. 

But it is not, in my judgment, as a great judge merely, or 
in comparison with other great judges, that Chief Justice Mar- 
shall will have his place in ultimate history. The test of histo- 
rical greatness — the sort of greatness that becomes important 
in future history — is not great ability merely. It is great ability 
combined with great opportunity, greatly employed. The ques- 
tion will be, how much a man did to shape the course of human 



A3IERICAN BAR ASSOCIATION. 



affairs, or to mould the character of human thought. Did he 
make history, or did he only accompany and embellish it ? Did 
he shape destiny, or was he carried along by destiny ? These 
are the enquiries that posterity will address to every name 
that challenges permanent admiration, or seeks a place in 
final history. Now it is precisely in that point of view, as 
it appears to me, and I venture to present the suggestion 
to your better consideration, that adequate justice has not 
yet been done to Chief Justice Marshall. He has been es- 
timated as the lawyer and the judge, without proper consider- 
ation of how much more he accomplished, and how much more 
is due to him from his country and the world, than can ever be 
due to any mere lawyer or judge. The assertion may perhaps 
be regarded as a strong one, but I believe it will bear the test 
of reflection, and certainly the test of reading in American his- 
tory, that practically speaking, we are indebted to Chief Justice 
Marshall for the American constitution. I do not mean the 
authorship of it, or the adoption of it — although in that he had 
a considerable share — but for that practical construction, that 
wise and far seeing administration, which raised it from a doubt- 
ful experinh-nt, adopted with great hesitation, and likely to be 
readily abandoned if its practical working had not been success- 
ful, raised it I say, from a doubtful experiment, to a harmonious, 
a permanent, and a beneficent system of government, sustained 
by the judgment, and established in the affection of the people. 
He was not the commentator upon x\merican constitutional 
law; he was not the expounder of it; he was the author, the 
creator of it. The future Hallam, who shall sit down with pa- 
tient study to trace and elucidate the constitutional history of 
this country — to follow it from its origin, through its experi- 
mental period and its growth to its perfection — to pursue it 
from its cradle, not I trust to its grave, but rather to its im- 
mortality, will find it all, for its first half century, in those 
luminous judgments, in which Marshall, with an unanswerable 
logic, and a pen of light, laid before the world the conclusions of 
his court. It is all there, and there it will be found and studied 



ADDRESS OF E. J. PHELPS. 



by future generations. The life of Marshall was itself the 
constitutional history of the country, from 1801 to 1835. 

It is difficult for us, at this time, to comprehend the obstacles 
that attended the original construction and practical adminis- 
tration of the constitution. Since the way through them has 
been pointed out by the labors of that court, since experience 
has justified and established those propositions, they seem very 
plain and clear. Starting from our point of view, and going 
backward, we can hardly appreciate the embarrassments that 
attended them in the outset. But the student of history will 
discover, the lawyer who attends to the growth as well as the 
learning of his profession will never forget, the discouragements 
that surrounded that subject when it was first taken in hand. 
yA constitution adopted with great opposition, the subject of the 
gravest difference of opinion among the wisest men, on its most 
material points: quite likely to fail, as its predecessor the Arti- 
cles of Confederation had failed ; the objecD of a heated party 
spirit and a bitter political controversy ; it not only demanded 
the highest order of judicial treatment, but such as could be 
reconciled to the universal judgment of the country. Popular 
opinion is a matter with which independent tribunals have 
usually but little concern. But in this case it became as vital 
as the law itself, because no constitution could stand, that proved 
repugnant to the general sense. 

The field was absolutely untried. Never before had there 
been such a science in the world as the law of a written con- 
stitution of government. There were no precedents. Courts 
of justice sit usually to determine the existing law, in the light 
of authoritative precedents, and statutes. Originality is neither 
expected nor tolerated. A magistrate who should bring much 
original invention to bear in expounding the law, would be apt 
to prove one of those questionable blessings that " brighten 
only when they take their flight." An original field of judi- 
cial exertion very rarely off"ers itself. To no other judge, so 
far as I know, has it ever been presented, except to Mansfield, 
in the establishment of the commercial law ; unless perhaps the 



8 AMERICAN BAR ASSOCIATION. 

remark may be extended to the labors of Lord Stowell, in the 
department of Enghsh consistorial law, and to those of Lord 
Hardwicke in equity. Those are the only instances that the 
long history of our profession under the common law offers, of 
what may be called an original field of judicial labor. 

Such was the task that addressed itself, when Marshall took 
his seat upon the bench, to the court over which he presided. 
A task of momentous importance — fraught with infinite diffi- 
culty — in a field withoutprecedent — and under the most pecrdiar 
and critical circumstances. 

It is a singular fitct, that although the Supreme Court had 
been in existence twelve years before 1801, when Marshall was 
appointed, and though three Chief Justices with brief terms of 
office had preceded him, only two decisions of that court had 
been made, on the subject of constitutional law ; — the case of 
Hylton against the United Stales, which affirmed the validity of 
a tax upon carriages, laid by the State of Virginia, and the case 
of Calder against Bidl, in which it was held, that an act of the 
Legislature of the State of Connecticut, granting a new trial in 
a civil action, was not in contravention of any provision of the 
constitution of the United States. Those were the only ques- 
tions previously decided, in respect to the American constitution. 
Between that time and 1835, when Marshall died, fifty-one de- 
cisions will be found to have been made and reported by that 
court, on the subject of the law of the federal constitution. 
In thirty-four of those cases, the opinion was delivered by the 
Chief Justice; being twice as many opinions as were delivered 
on that subject, by all the other members of the court together. 

I have spoken of this great work, as the work of the Chief 
Justice — not unmindful certainly of his eminent associates, and 
especially of Judge Story, who sat with'him during a considerable 
portion of that time. And I take leave to refer to the testimony 
of Judge Story, lest some may think I have gone too far in at- 
tributing the merit of this system of law so largely to Chief Justice 
Marshall. Judge Story is perhaps the best witness who can testify 
on that point, because his means of knowledge were complete. 



ADDBESS OF E. J. PIIELPS. 



He was not likely to undervalue or disparage the labors of his 
associates, nor entirely to overlook his own very valuable eftbrts 
in that branch of the law. He says, in an article contributed 
to the North American Review, " We resume the subject of the 
constitutional labors of Chief Justice Marshall. We emphati- 
cally say of Chief Justice Marshall. For though we would 
not be unjust to those learned gentlemen who have from time 
to time been his associates on the bench, we are quite sure they 
would be ready to admit, what the public universally believe, 
that his master mind has presided in their deliberations, and 
given to the results a cogency of reasoning, a depth of remark, 
a persuasiveness of argument, a clearness and elaboration of 
illustration, an elevation and comprehensiveness of conclusion, 
to which none others offer a parallel. Few decisions upon 
constitutional questions have been made in which he has not 
delivered the opinion of the Court; and in those few the duty 
devolved upon others to their own regret, either because he 
did not sit in the case, or from motives of delicacy abstained 
from taking an active part." 

It is to be remembered further, that in only one of all those 
decisions did the majority of the court fail to concur with Mar- 
shall. In the case of Ogden vs. Sanders — where the power of 
the States to pass bankrupt or insolvent laws was discussed, he 
was for the first and last time, in the minority. Four of the 
Judges — against the opinion of Judges Marshall, Story, and 
Duvall — sustained the power of the States to pass such a law : 
but all concurred in the judgment in that case, which was that a 
discharge under such a law could not affect a creditor outside the 
jurisdiction, who had not thought proper to appear and become 
a party to the proceeding. I need hardl}- say to an assemblage 
of lawyers, that as the half century that has passed away since 
most of those decisions were rendered, has completely established 
and confirmed and rendered plainer and plainer the soundness 
and the wisdom of the law they involve, so experience has 
likewise shown, that in this solitary instance in which his 
opinion was rejected, the Chief Justice was right. He cor- 



10 AMERICAN Ar ASSOCIATION. 

rectly anticipated, with a far-reaching sagacity, what would 
be the result of a system of insolvency, that discharges a debtor 
in one State, and fails to discharge him in another; that pays 
one creditor who is within the State, and fails to pay another 
who is without it. And he clearly perceived, that if that great 
power was to be reposed at all in the federal government, as it 
is, and of necessity must be, it ought to be an exclusive power. 
There is the only and mistaken instance in which his judgment 
on a constitutional question did not become the law of the land. 
x\nd therefore it is to be said, without injustice to his 
associates, and without injustice to those great lawyers to 
whom I have alluded, and whose genius and labors were 
contributed to build up this system of law, that the value 
and the credit of it, the authorship and creation of it, are 
principally due to Marshall. And I believe it will be seen 
in future history, that as Washington brought this people 
through the revolution to a period when they were able to have 
a constitution of their own, so Marshall carried the constitution 
through that experimental period, which settled the question 
whether it should stand or fall. If this country has profited, 
and if through this country the world has profited, by the rais- 
ing of an instrument doubtless the most important since Magna 
Charta, couched necessarily and wisely to a large degree in 
generalities, into the beneficent government under which we 
live, it is more largely due to Chief Justice Marshall than to 
any other man, or perhaps to all other men, who ever had any- 
thing to do with it. That is my proposition. Of course if the 
revolution had failed, it is not probable we should always have 
continued to be colonies of Great Britain. Some other leader, 
in some other rebellion, might have cari'ied us through to a 
condition of independence. If this constitution had perished, 
republican government might not have perished. Some other 
tribunal, under some other constitution, might perhaps have 
reconstructed it. But taking history as it stands — dealing 
with the constitution under which we live, and not entering 
upon the vain conjecture of what might have been the conse- 



ADDRESS OF E. J. PHELPS. H 

quences if that constitution had fallen, certainly the success of 
the experiment of repubhcan government may be said to be 
mainly due to Marshall. 

When those celebrated judgments were rendered, the ques- 
tions involved were set at rest. Even party and partizan spirit 
was hushed. They passed by universal consent, and without 
any further criticism, into the fundamental law of the land, 
axioms of the law, no more to be disputed. Time has demon- 
strated their wisdom. They have remained unchanged, unques- 
tioned, unchallenged. All the subsequent labors of that high 
tribunal on the subject of constitutional law liave been founded 
on, and have at least professed and attempted to follow them. 
There they remain. They will always remain. They will 
stand as long as the constitution stands. And if that should 
perish, they would still remain, to display to the world the 
principles upon which it rose, and by the disregard of which 
it fell. 

Let me say here in passing, that the service ought to be 
rendered to the history and literature, to say nothing of the 
constitutional law of the country, of bringing these opinions 
together in some compilation that should make them accessible 
to the general student, as well as to the lawyer. They are 
scattered, as you know, through some twenty-five volumes of 
reports, practically inaccessible to readers outside the profes- 
sion. They are known only through a vague reputation, 
except to the profession, and not perhaps so completely under- 
stood by all the profession as could be desired, if we may 
judge from some of the recent discussions upon the subject. 
If they could be brought together, not merely as the re- 
pository of the foundation stones of the fundamental law of 
the land, but likewise as among the highest models of logic and 
reason, and the purest specimens of judicial style, it would be 
a contribution to American letters and history, that would be 
valuable and permanent. 

I do not propose, as you may well imagine, to enter into any 
discussion on questions of constitutional law. But a few words 
2 



12 AMEBICAN BAB ASSOCIATION. 

may be pardoned, in respect to the means and the manner by 
which the result I have spoken 'of, was achieved ; and not only 
achieved, but rendered so perfectly satisfactory to the whole 
body of the American people. It seems to me that it all turned 
upon one cardinal point, and a point which I shall venture to 
suggest needs to be more frequently recurred to, and more 
clearly understood. And that is, that the construction of the 
constitution of the United States, for all purposes for which it 
requires construction, belongs everywhere and always to the 
jurisprudence of the country, and not to its politics, or even to 
its statesmanship. The lawyer or the student, who shall set 
himself down to follow the labors of that great tribunal from 
beginning to end, to learn on what foundation they rested, and 
what was the guide through the maze that proved as unerring 
as the mariner's compass in the storm, will find it in that 
salutary principle, set forth with the utmost clearness and 
unanswerable force in the early, case of Marhury against 
Madison, followed up from time to time by repeated decisions, 
and adopted by all jurists and all courts ever since, that 
the constitution of this country has by an inevitable neces- 
sity, reposed in the judicial department of the government, the 
sole determination and construction of the fundamental law of 
the land. In England, whence our institutions were mainly 
derived. Parliament is omnipotent. It is the tribunal charged 
with the administration of the unwritten British constitution. 
Their action in that sphere is final. Any statute they deem it 
proper to pass is a valid statute, and controls all rights, public 
and private. The American constitution is based upon a 
difierent theory. That difference, as it seems to me, is the 
distinguishing and almost the only vital difference from the 
constitution of Great Britain. The mere machinery of the 
administration of the government, the manner in which the 
chief magistrate shall be elected — the term of his office — the 
appointment of his subordinates — these and other details are 
subject to change, as time and experience shall point out. They 
are not essential to our system. It is not upon these that 



ADDRESS OF E. J. PHELPS. 13 

E.epub]ican government reposes. It is, I say — and I repeat in 
order to emphasize more clearly the proposition I desire to 
present — it is upon the entrusting to the judicial department 
of the whole subject of the constitutional law, for all purposes, 
that our government rests. — While that stands and is main- 
tained in its purity, this constitution will stand. The ship 
will ride as long as the anchor holds, though storm after storm 
may sweep across the face of the sea. While that remains, 
the system will remain. Details may be modified and changed, 
we cannot foresee to what extent. Changes of that sort have 
already taken place, but tlie principle I have stated, is the 
fundamental idea. 

That point once established by the court, the simple, the 
ancient, the salutary, the perfectly intelligible and just principles 
of the common law, became sufficient for all the purposes of 
constitutional construction. When the rule of construction of 
the great compact was shown to be simply a question of law, 
the law was found perfectly adequate to dispose of it. 

No better illustration can be produced in history, of the pro- 
found wisdom of that system of jurisprudence known as the 
common law, than to observe how completely those rules that 
are applied to the humblest contract, between the obscurest 
individuals, were found sufficient for the emergency, when a 
court of justice was called upon for the fi-rst time in the history 
of the world, not merely to adjudicate upon private rights, but 
to promulgate from the bench the principles of civil government, 
and to adjust the rights and powers of conflicting sovereignties. 
If the^eulogian of the common law seeks for the most signal 
illustration of its comprehensiveness, he will find it there. It was 
by the application to the constitution of those plain and clear 
rules, that all the results of its construction were satisfactorily 
worked out. 

When we peruse those judgments, we are reminded, especi- 
ally and above all, how absolutely free they are from all con- 
siderations of political expediency, all motives of party politics. 



14 AMERICAN BAR ASSOCIATION. 

all State craft, or even statesmanship, unless it may be 
deemed the highest statesmanship to avoid the attempt at 
statesmanship in judicial construction, and not to confound 
two very different systems of administration, belonging to 
two very different tribunals. How perfectly free from all 
suspicion of party or political bias or feeling those decisions 
stand ! And that, as it appears to me, is one reason why 
they were accepted by the universal consent of the American 
people, and have always remained without question or dispute. 
No political party ever yet convinced its adversaries by argu- 
ment. Discussion only intensifies the dispute ; harmony with a 
political opponent is only obtained, by the exercise of the 
courtesy which suspends all discussion on the points of difference. 
No living man could have addressed to the American people in 
that first critical half century of the Republic, a constitutional 
argument based upon party politics, that would have stood an 
hour. It would have been universally rejected; denied by its 
opponents, despised by its friends. Marshall, as it is well 
known, was a Federalist. His political opinions were doubtless 
pronounced and decided. It was not because he was without 
political sentiments, that he excluded them from his court. The 
Federal party, I may be permitted to observe in passing, will 
perhaps receive better justice from future history, than it has 
from the past. It went to final wreck about the time of the 
last war with Great Britain, encountering the usual fate of a 
party which sets itself in opposition to any war it may be 
proposed to engage in. But I believe the ultimate justice will 
be done it, of remembering that some of the greatest and purest 
men this country ever contained were the founders and leaders 
of that much abused party. Their views have been generally 
misconceived. It was not upon the construction of the consti- 
tution we have, that they differed from their opponents, but 
upon the previous question, whether we should have that con- 
stitution or some other. It is idle to busy ourselves with con- 
jectures of what might, would, or could have been the history 
of this country, if the constitution which Washington, Hamilton, 



ADDRESS OF E. J. PHELPS. 15 

Jay, and doabtless Marshall preferred, had been adopted, be- 
cause it was not adopted. But Federalist as he was, and what- 
ever may be said of his party or their views, we can find no 
more trace in any line of those great judgments, that would 
indicate the political sentiments or bias of the Chief Justice, than 
if we were to study his opinions upon charter parties, or policies 
of insurance. 

Let me quote on this subject some very forcible and apposite 
language, from the resolutions adopted by the Charleston bar 
(I know not who was the author*) on the occasion of Chief 
Justice Marshall's death. " Even the spirit of party respected 
the unsullied purity of the judge, and the fame of the Chief 
Justice has justified the wisdom of the constitution, and recon- 
ciled the jealousy of freedom with the independence of the ju- 
diciary." 

As every lawyer and every intelligent layman knows, the 
point of most danger and difiiculty in constitutional construc- 
tion, where the greatest risk of final shipwreck is incurred, is 
in the attempt to adjust those conflicting — sometimes doubtful — 
always very delicate — relative rights of the States and the 
Federal Government. That point, of all others, was treated by 
the court with the largest sagacity and the greatest wisdom. 
Critical as were many of the emergencies that arose in those 
days out of that subject, they were all not only satisfactorily 
met, but buried and forgotten forever, under the wise and salu- 
tary administration of the law which they encountered. 

Upon the distinction, so much and so long discussed in some 
parts of our country, between strict construction and liberal 
construction in respect to these relative rights, it was the view 
of the Chief Justice and his associates, that they were unable 
to perceive what those words meant in that connection, or what 
just application they had. The court had simply to ascertain 
the meaning of a written instrument, which upon common 
principles was to be construed both strictly and liberally; 

* Stated by Gen. Lawton, of Georgia, to have been written by Mr. Pettigru. 



16 AMERICAN BAR ASSOCIATION. 



strictly in ascertaining what powers it contains, liberally in 
carrying into effect those powers it is found to contain. 

Allow me, in taking leave of this point, to read a few words 
from the language of the Chief Justice himself, out of much 
that might be usefully quoted did time allow. "In the argu- 
ment," says he, " we have been admonished of the jealousy 
with which the States oF the Union view a revising power in- 
trusted by the constitution and laws of the United States, to 
this tribunal. To observations of this character, the answer 
uniformly given has been, that the course of the judicial depart- 
ment is marked out by law. We must tread the direct and 
narrow path prescribed for us. As this court has never grasped 
at ungranted jurisdiction, so will it never, we trust, shrink from 
the exercise of that which is conferred upon us." Words which 
are fit to be written in letters of gold, over every tribunal in 
this country. 

One other suggestion in respect to these opinions of Marshall. 
I have said they were models of reasoning, and of judicial style ; 
and I repeat the remark. If the constitution were out of exist- 
ence — if the whole subject which they discuss were to become 
only a thing of the past, of no further human significance, they 
would still retain their value, as amonc; the most admirable 
productions in the logic and literature of jurisprudence. There 
are two kinds of reasoning prevalent at the bar, and prevalent 
I may say .without undue disparagement, sometimes on the 
bench. There is the reasoning that silences, and the rensoning 
that convinces ; and they are very different things. The casti- 
istry and plausibility, the dexterity and subtlety, the circuitous 
and round-about processes of indirection which may confound 
an antagonist who is not strong enough in dialectics to refute 
them, is altogether a different thing from that simple, direct, 
straightforward, honest reasoning, that silences as a demon- 
stration in Euclid silences, because it convinces. Such was the 
reasoning of Marshall, born of the intellectual as well as moral 
honesty, the tough and vigorous fibre of the man. And this it 
was, in u;reat measure, that carried home and established in 



ADDRESS OF E. J. PHELPS. 17 

the understanding and judgment of mankind, the truths it 
embodied. 

It is foreign to my purpose, and beyond the limits I fear I 
am already transgressing, to follow the labors of the Chief 
Justice any further. I shall not at all advert to their value, 
their eminence, their greatness, in so many other branches of 
jurisprudence besides constitutional law. I shall not try to 
depict — no poor words of mine could depict — the spectacle 
which that unassuming but dignified tribunal presented during 
thirty-five years of time, while with unabated strength he con- 
tinued to preside there, until the snows of four-score winters 
had fallen on his head ; surrounded by the associates, and the 
circle of advocates I have before referred to — dealing with the 
greatest questions, the most important interests, in the light of 
the highest reason, the finest learning, the most elevated senti- 
ment, and often with an affecting eloquenc^ which in our busy 
day has disappeared from courts of justice, to be heard there no 
more; enshrined in the respect, the affection, the veneration of 
all his countrymen ; no breeze of party conflict but was hushed 
in his presence, no wave of sectional quarrel but broke and 
subsided when it reached his feet. His life, -strange to say, 
remains to be written. Lives enough have been thought wonh 
writing, that never were worth living, but the life of the great 
magistrate is unwritten still. Perhaps it is as well that it 
should be. Time was needed to set its seal upon the great 
lessons he taught; experience was requisite to show what was 
the result of follovving, and what the result of departing from 
them. Some day the history of that life — that grand, pure 
life — will be adequately written. But let no 'prentice hand 
essay the task ! He should possess the grace of Raphael, and 
the color of Titian, who shall seek to transfer to an enduring 
canvas, that most exquisite picture in all the receding light of 
the days of the early republic. 

Perhaps the brethren of our profession do not always remem- 
ber the high prerogative, which under this system of fundamen- 
tal law, different from any other we know of, the American bar 



18 amebioanTsab association. 

enjoys. Lawyers in other countries have nothing to do, as 
hiwyers, with constitutional principles of government, or with 
the basis on which its administration stands. They deal exclu- 
sively with the administration of justice, civil and criminal, 
between man and man, under a government established and 
fixed, with the operations of which they have professionally no 
concern. We, on the other hand, are charged with the safe- 
keeping of the constitution itself. It is from your ranks that 
judicial vacancies are constantly to be filled up; the lawyers of 
to-day are the judges of to-morrow. It is by your discussions, 
in the light of your writings, by the aid of your labors that 
every successive question that arises touching the fundamental 
law, is to be adjudicated. Great and distinguished as the 
English bar is and has been, it never had any such function as 
this. And that. is doubtless cue reason, why the great advo- 
cates of the period to which I have alluded, were able to 
achieve such distinction. They were dealing with a class of 
subjects, which lawyers had never dealt with before. " Your 
mere nisi prius lawyer," said Burke, when harassed with the 
technical objections of his adversaries on the impeachment of 
Hastings — " Your mere nisi prius lawyer knows no more of 
the principles that control the affairs of state, than a titmouse 
knows of the gestation of an elephant." The remark was as 
true as it was pungent, when applied to the bar to which he 
referred. But it has no just application to ours. If the funda- 
mental proposition I have stated is sound, if the constitution 
that affords the basis of government as well as of forensic law, 
belongs to the judicial department to determine and to admin- 
ister, then it is placed in the safe-keeping of the American bar. 
And we enjoy, as I have said, such a prerogative as never 
before was conferred upon a body of advocates. 

But does that high prerogative carry with it no correspond- 
ing duty ? Are we charged with nothing as the price of such 
a privilege? Have we no other trust to execute in respect to the 
American constitution, than that which all citizens are charged 
with, and are expected to perform ? It is idle to adjure men to 



ADDRESS OF E. J. PHELPS. 19 

maintain the constitution, or to compel them to swear to support 
it. Every man proposes to maintain and support tlie constitution 
— as his party understands it. The question is what is the con- 
stitution ? When a great and critical emergency arises, when 
a crisis fraught with extreme and vital consequences approaches, 
what is the constitution ? Who is to determine it, and above 
all, upon what principle and basis of construction ? ' That is 
the question. 

It was pointed out to us in the elegant and scholarly 
essay of Mr. Mercer, to which we listened last night, how 
the concurrent testimony of all human experience establishes 
the truth, that the interpretation and the strength of law 
is but a reflex of the national spirit out of which all law arises. 
Tliere is, as it seems to me, a practical and immediate appli- 
cation of that proposition to the legal profession of this country, 
in this very particular. Their influence is great ; their influence 
upon legislation — their influence upon judicial proceedings — 
their influence upon the public mind — upon political sentiment, 
especially in respect to questions particularly within their 
province. It is from them that the true spirit of the juris- 
prudence of the country on all subjects, and above all this 
subject, must of necessity emanate. It is they who make it; it 
is through them that it must take effect. That political parties 
will always exist, is inevitable ; that they always should exist, 
is probably desirable ; that members of our profession, as of all 
other professions, should represent all shades of political opinion, 
and belong to all parties, is to be expected ; though I hope on 
some of them, party ties hang very loose. The question is, 
how far party diff'erences shall go. Where shall they set out, 
where shall they terminate ? Shall they invade the province of 
the fundamental law? Is that to be administered by politicians, 
to be construed by caucuses, to stand or fall upon political con- 
siderations, and for the purposes of partizan success ? Are not 
there divergent paths enough, which starting from the consti- 
tution as a common ground, and running in every direction 
through all the ramifications of the administration of govern- 



oMf 



AMERICAN BAR ASSOCIATION. 



ment, throucjli the whole boundless field of policy, and states- 
manship, and expediency, are not they enough for all the purposes 
of politics, and all the warfare of party ? Should not the lawyers 
of this country meet as on a common ground, in respect to all 
questions arising upon the national constitution, dealing with 
them as questions of jurisprudence and not of party, setting 
their feet upon, and their hands against all efforts to transgress 
the true limits of the constitution, or to make it at all the sub- 
ject of political discussion ? It is too true, that this constitution 
of ours, in respect of which it might well be said to him who 
approaches it, " put off thy party shoes from off thy feet, for 
the place on which thou standest is holy ground," it is too true, 
that it has become more and more a subject to be hawked about 
the country, debated in the newspapers, discussed from the stump, 
elucidated by pot house politicians, and dung-hill editors, schol- 
ars in the science of government who have never found leisure 
for the graces of English grammar, or the embellishments of 
correct spelling. 

When we reflect upon all this country has passed through, is 
there no light to be gathered from experience ? Should not the 
members of this conservative profession, "as honorable as justice, 
as ancient as the forms of law," charged with a duty in this re- 
gard so special, and so important, should not they stand together 
upon these as upon all other questions of jurisprudence, con- 
sidering and discussing them only upon considerations that be- 
long to jurisprudence, and not upon those that are in the domain 
of politics ? Should not they of all men stand together, and unite 
to put an end, as I believe they might put an end, if their action 
was unanimous, not to political controversy — that is neither to 
be expected nor desired — but to that most destructive form of 
political controversy, coming from whatever party, or from 
whatever quarter, or for whatever purpose, that seeks to invade 
the foundations of the constitutional law, and to plant them on 
the shifting and treacherous sands of partizan expediency? 

And, gentlemen, allow me one further suggestion. What 
good is to come from this Association, we are trying to build 



ADDBESS OF E. J. PHELPS. 21 

up? What is to be its significance, or its ultimate value? What 
is to repay us, or any of us, for turning aside from the current 
of our busy lives, to meet together here? Questions of detail in 
the machinery of the law, will be usefully dealt with, no 
doubt. The pleasure of meeting and forming acquaintances 
between men of the profession from all the various States, will 
doubtless be great. But what final good, what permanent use- 
fulness is reasonably to be expected from it, unless it be the 
creation in our profession, by common consent, by mutual inter- 
course and support, of a broad, national, elevated, independent, 
fearless spirit of constitutional jurisprudence ? The spirit that 
builds up and perpetuates, rather than that which pulls down 
and destroys. 

We come together from all parts of our country — our com- 
mon country — from the scenes of a desolation and sorrow on all 
hands, that Grod alone can estimate — over graves numberless to 
our arithmetic — the harvest of the effort to settle constitutional 
questions by force of arms. Let it all pass. We come to bury 
the armed Caesar, not to praise him. To renew again, in faith 
and hope, the work which Marshall and his associates began, 
of cementing and building up on firm and lasting foundations, 
the American constitution. Is it the court alone that is 
charged with that duty ? Have we no part or lot in the mat- 
ter ? Lingers among us no memory of those who are gone ? 
Comes down to us no echo from our father's time, that shall 
awake an answering voice ? 

Fortunately for us all, we have in the successors of the old 
court, an upright and excellent tribunal. Judges who have 
addressed themselves, and will continue to address themselves, 
with great ability, patriotism, and success, to the difficult and 
embarrassing questions, born of the troubled time. But no 
court can stand without the cordial support of the bar. It 
was the strength of Marshall's court, that those great men 
who rallied about it in the profession, and aided in its discus- 
sions, stood by it and sustained it before the country, when 



22 AMERICAN BAB ASSOCIATION. 

important decisions were made, with a moral force that was 
adequate to all occasions. 

It is idle to say that our sky is free from clouds. It is use- 
less to deny that wise and ihoughtful men entertain grave 
doubts about the future. The period of experiment has not 
yet passed, or rather, has been again renewed. The stability 
of our system of government is not yet assured. The dema- 
gogue and the caucus still threaten the Nation's life. But we 
shall not despair. Still remains to us " our faith, triumphant 
o'er our fears." Let us only for our part, see to it that we 
discharge the duty that every man owes to his profession. 
And come what may, 

" Thro' plots and counter plots — 
Thro' gain and loss — thro' glory and disgrace — 
Along the jjlains where passionate discord rears 
Eternal Babel," 

let us join hands in a fraternal and unbroken clasp, to main- 
tain the grand and noble traditions of our inheritance, and to 
stand fast by the ark of our covenant. 



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